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This final rule is effective November 17, 2008, unless EPA publishes a prior Federal Register notice withdrawing this immediate final rule. All comments on the codification of Hawaii's underground storage tank program must be received by the close of business October 17, 2008. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of November 17, 2008, in accordance with 5 U.S.C. 552(a).

Effective Date:

11/17/2008

Comments Close:

11/17/2008

Document Type:

Rule

Document Citation:

73 FR 53742

Page:

53742-53747
(6 pages)

CFR:

40 CFR 282

Agency/Docket Numbers:

EPA-R09-UST-2007-1122

FRL-8716-3

Document Number:

E8-21497

Document Details

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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The Resource Conservation and Recovery Act of 1976, as amended (RCRA), authorizes EPA to grant approval to States to operate their underground storage tank programs in lieu of the Federal program. This action codifies EPA's decision to approve State programs and incorporates by reference those provisions of the State statutes and regulations that will be subject to EPA's inspection and enforcement authorities in accordance with sections 9005 and 9006 of RCRA Subtitle I and other applicable statutory and regulatory provisions. This rule codifies the prior approval of the State of Hawaii's underground storage tank program and incorporates by reference appropriate provisions of State statutes and regulations.

DATES:

This final rule is effective November 17, 2008, unless EPA publishes a prior Federal Register notice withdrawing this immediate final rule. All comments on the codification of Hawaii's underground storage tank program must be received by the close of business October 17, 2008. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of November 17, 2008, in accordance with 5 U.S.C. 552(a).

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R09-UST-2007-112, by one of the following methods:

Hand Delivery: Laurie Amaro, Waste Management Division, U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105. Such deliveries are only accepted during EPA's normal hours of operation and should be made to the EPA receptionist office on the first floor.

Instructions: Direct your comments to Docket ID No. EPA-R09-UST-2007-112. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statue. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means WPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to Start Printed Page 53743technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other materials, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 9 Environmental Information Center Library, 13th Floor, 75 Hawthorne Street, San Francisco, CA 94706; Business hours: 9 a.m. to noon and 1 p.m. to 4 p.m., Monday-Thursday. Phone Number: (415) 947-4406; e-mail address: library-region9@epa.gov.

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of RCRA, 42 U.S.C. 6991c, allows the EPA to approve a State underground storage tank program to operate in the State in lieu of the Federal underground storage tank program. EPA published a rule in the Federal Register granting approval to Hawaii on September 25, 2002, and approval was effective on September 30, 2002 (67 FR 60161).

EPA codifies its approval of a State program in 40 CFR part 282 and incorporates by reference therein the State's statutes and regulations that make up the approved program which is federally-enforceable in accordance with sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions. Today's rulemaking codifies EPA's approval of Hawaii's underground storage tank program. This codification reflects the State program in effect at the time EPA granted Hawaii's approval, in accordance with section 9004(a), 42 U.S.C. 6991c(a), for its underground storage tank program. Notice and opportunity for comment were provided earlier on the Agency's decision to approve the Hawaii program, and EPA is not now reopening that decision nor requesting comment on it.

To codify EPA's approval of Hawaii's underground storage tank program, EPA has added section 282.61 to title 40 of the CFR. 40 CFR 282.61(d)(1)(i) incorporates by reference the State's statutes and regulations that make up the approved program which is federally-enforceable. 40 CFR 282.61 also references the Attorney General's Statement, the Demonstration of Adequate Enforcement Procedures, the Program Description, and the memorandum of Agreement, which were evaluated as part of the approval process of the underground storage tank program, in accordance with Subtitle I of RCRA.

EPA retains the authority in accordance with sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions, to undertake inspections and enforcement actions in approved States. With respect to such an enforcement action, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogues of these provisions. Therefore, Hawaii's inspection and enforcement authorities are not incorporated by reference, nor are they part of Hawaii's approved state program which operates in lieu of the Federal program. These authorities, however, are listed in 40 CFR 282.61(d)(1)(ii) for informational purposes, and also because EPA considered them in determining the adequacy of Hawaii's enforcement authority. Hawaii's authority to inspect and enforce the State's underground storage tank requirements continues to operate independently under State law.

Some provisions of the State's underground storage tank program are not part of the federally-approved State program. These non-approved provisions are not part of the RCRA Subtitle I program because they are “broader in scope” than Subtitle I of RCRA. See 40 CFR 281.12(a)(3)(ii). As a result, State provisions which are “broader in scope” than the Federal program are not incorporated by reference for purposes of Federal enforcement in 40 CFR part 282. Section 282.61(d)(1)(iii) of the codification simply lists for reference and clarity the Hawaii statutory and regulatory provisions which are “broader in scope” than the Federal program and which are not, therefore, part of the approved program being codified today. “Broader in scope” provisions cannot be enforced by EPA; the State, however, will continue to enforce such provisions.

When the phrases, “insofar” and “except insofar,” are used in Appendix A (which provides an informational listing of the state requirements incorporated by reference in Part 282 of the Code of Federal Regulations), refer to the binders in the codification materials for specifics as to any words, phrases, sentences, paragraphs, or subsections that are “crossed-out” in the binders. These crossed-out materials are not incorporated by reference in Part 282 of the Code of Federal Regulations.

Statutory and Executive Order Reviews

This action only codifies EPA-authorized underground storage tank program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law (seeSUPPLEMENTARY INFORMATION). Therefore, this rule complies with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this rule from its review under Executive Order (EO) 12866. 2. Paperwork Reduction Act—This rule does not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act—After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act—Because this rule codifies pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act. 5. Executive Order 13132: Federalism—EO 13132 does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government). 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply Start Printed Page 53744to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes). 7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks—This rule is not subject to EO 13045 because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This rule is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866. 9. National Technology Transfer and Advancement Act—EPA has previously addressed the non-applicability of the National Technology Transfer and Advancement Act in its final approval of this state program. See 67 FR 60161 for final approval of state program. Section 12(d) of the National Technology Transfer and Advancement Act does not apply to this action. 10. Congressional Review Act—EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Nevertheless, to allow time for public comment, this action will be effective on November 17, 2008.

Subpart B—Approved State Programs

(a) The State of Hawaii's underground storage tank program is approved in lieu of the Federal program in accordance with Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991et seq. The State's program, as administered by the Hawaii Department of Health, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved the Hawaii underground storage tank program on September 25, 2002, and approval was effective on September 30, 2002.

(b) Hawaii has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.

(c) To retain program approval, Hawaii must revise its approved program to adopt new changes to the Federal Subtitle I program that make it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Hawaii obtains approval for the revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the Federal Register.

(d) Hawaii has final approval for the following elements submitted to EPA in the State's program application for final approval. On September 25, 2002, EPA published a rule approving the State's program in the Federal Register, 67 FR 60161. That approval became effective on September 30, 2002. Copies of Hawaii's program application may be obtained from the Hawaii Department of Health, Solid and Hazardous Waste Branch, 919 Ala Moana Boulevard, Suite 212, Honolulu, HI 96814.

(1) State statutes and regulations. (i) The provisions cited in paragraph (d)(1)(i) of this section are incorporated by reference as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

Section 11-281-131 Appendices VII and VIII (insofar as they relate to the Department's field citation program)

(iii) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the approved program, and are not incorporated by reference. These provisions are not federally enforceable.

Section 342L-1 Definitions (“owner” insofar as it includes persons who hold indicia of ownership to protect an interest in a tank system; “permit” insofar as it sets forth a permitting program; and “regulated substance” insofar as it includes other substances as designated by the Department)

Section 342L-4 Permits; procedures for (insofar as it establishes a permitting program)

Section 11-281-03 Definitions (“farm tank” insofar as it regulates tanks on farms that are not used for farm or commercial purposes; “regulated substance” insofar as the Department can designate other substances; “reportable quantity” insofar as it sets forth a reporting threshold of 10 lbs. for trichloropropane; and “underground storage tank” insofar as its designation of farm tanks exceeds the scope of the federal regulations)

Section 11-281-23 Permit required (insofar as it relates to the permitting program)

Section 11-281-24 Application for a permit (insofar as paragraphs (a), (b), (c)(3), and (c)(4) of this section relate to the permitting program)

Section 11-281-25 Permit (insofar as paragraphs (a) and (b) of this section relate to the permitting program)

Section 11-281-26 Permit renewals (insofar as it relates to the permitting program)

Section 11-281-27 Action on and timely approval of an application for a permit (insofar as it relates to the permitting program)

Section 11-281-28 Permit conditions (insofar as it relates to the permitting program)

Section 11-281-29 Modification of permit and notice of change (insofar as it relates to the permitting program)

Section 11-281-30 Revocation or suspension of permit (insofar as it relates to the permitting program)

Section 11-281-31 Change in owner or operator for a permit (insofar as it relates to the permitting program)

Section 11-281-34 Maintenance of permit or variance (insofar as it relates to the permitting program)

Section 11-281-35 Fees (insofar as it establishes registration fees)

Section 11-281-45 Reporting and recordkeeping (insofar as paragraph (b)(3)of this section addresses posting of signs; and paragraph (c)(6) of this section requires maintenance of permit records)

Section 11-281-73 Posting of signs (insofar as there is no analogous provision in the federal regulations)

Section 11-281-131 Appendices II, IV, V, and VI of this section (insofar as they address permit application and transfer procedures and variances)

(2) Statement of legal authority. (i) “Attorney General's Statement,” signed by the State Attorney General on October 12, 2000, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

(ii) Letter from the Attorney General of Hawaii to EPA, October 12, 2000, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Procedures for Adequate Enforcement” submitted as part of the original application on May 23, 2001, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

(4) Program Description. The program description and any other material submitted as part of the original application on May 23, 2001, though not incorporated by reference, are referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 9 and the Hawaii Department of Health, signed by the EPA Regional Administrator on September 13, 2002, though not incorporated by reference, is referenced as part of the approved underground storage tank program in accordance with Subtitle I of RCRA, 42 U.S.C. 6991et seq.

Start Amendment Part

3. Appendix A to Part 282 is amended by adding in alphabetical order “Hawaii” and its listing to read as follows:

End Amendment Part

Appendix A to Part 282—State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations

* * * * *

Hawaii

(a) The statutory provisions include:

(1) Hawaii Revised Statutes, Chapter 342L, Underground Storage Tanks.

Section 342L-1 Definitions (except “complaint” insofar as it sets forth Start Printed Page 53746enforcement authorities; “owner” insofar as it includes persons who hold indicia of ownership to protect an interest in a tank system; “permit” insofar as it sets forth a permitting program; and “regulated substance” insofar as it includes other substances as designated by the Department)

Section 342L-7.5 Record maintenance

Section 342L-30 Notification requirements (except paragraph (i) of this section insofar as it grants the Department authority to assess penalties for noncompliance)

Section 342L-32 Standards for tanks and tank systems

Section 342L-33 Release detection

Section 342L-34 Reporting of releases

Section 342L-35 Response to suspected or confirmed releases

Section 342L-36 Financial responsibility

Section 342L-37 Underground storage tank and tank system change in service and closure requirements

Section 342L-50 Definitions (except “owner” insofar as it defines lenders as operators and subjects such lenders to requirements other than the corrective action requirements)

(2) Hawaii Revised Statutes, Chapter 342D, Water Pollution.

Section 342D-1 Definitions

Section 342D-4 Duties; rules

Section 342D-7 Variances (Insofar as paragraph (a) of this appendix is applicable to the underground storage tank program)

Section 11-281-03 Definitions (except “complaint” insofar as it sets forth enforcement authorities; “farm tank” insofar as it regulates tanks on farms that are not used for farm or commercial purposes; “field citation” and “force majeure” insofar as they relate to the Department's enforcement authorities; “regulated substance” insofar as the Department can designate other substances; “reportable quantity” insofar as it sets forth a reporting threshold of 10 lbs. for trichloropropane; and “underground storage tank” insofar as its designation of farm tanks exceeds the scope of the federal regulations)

Section 11-281-45 Reporting and recordkeeping (except paragraph (b)(3) of this section insofar as it addresses posting of signs; and paragraph (c)(6) insofar as it requires maintenance of permit records)

Section 11-281-51 General requirements for all underground storage tanks or tank systems

Section 11-281-52 Methods of release detection for tanks

Section 11-281-53 Methods of release detection for piping

Section 11-281-54 Release detection recordkeeping

Section 11-281-61 Reporting of suspected releases

Section 11-281-62 Investigation of off-site impacts

Section 11-281-63 Release investigation and confirmation steps

Section 11-281-64 Reporting and cleanup of spills and overfills

Section 11-281-71 General

Section 11-281-72 Immediate response actions

Section 11-281-74 Initial abatement measures and site assessment

Section 11-281-75 Initial site characterization

Section 11-281-76 Free product removal

Section 11-281-77 Investigation of soil and ground water contamination